EACJ faults amendment of EAC treaty but upholds Customs Union and Common Market dispute settlement mechanisms

East African Community Secretariat, Arusha, 10 May 2013: The East African Court of Justice (First Instance Division) today delivered judgment in a reference where the East African Centre for Trade Policy and Law sought declarations against the Secretary General of the East African Community that:

(a) the proviso to Article 27 and Article 30(3) of the Treaty, which were introduced in 2007 by way of amendment of the Treaty, contravene the Treaty as far as the jurisdiction of the East African Court of Justice to ensure adherence to law in the interpretation and application of and compliance with the Treaty; and

(b) the Dispute Settlement Mechanism provided for under Article 24 of the Customs Union Protocol (which establishes an East African Trade Remedies Committee to handle matters pertaining to rules of origin, anti-dumping, subsidies and countervailing measures and safeguard measures) and Article 54 of the Common Market Protocol (which empowers competent judicial, administrative or legislative authority or any other competent authority to handle disputes arising out of the implementation of the Protocol ) infringe on the jurisdiction of the East African Court of Justice by establishing “parallel adjudicatory bodies” or allowing national courts and other institutions to handle Customs and Common Market disputes.

The Court held that both the proviso to Article 27(1) (which recognises interpretation of the Treaty that may be conferred on organs of Partner States) and Article 30(3) (which provides that the Court shall have no jurisdiction where an act, regulation, directive, decision or action of Partner States or an institution of the Community is complained of where such act etc is reserved under the Treaty to an institution of a Partner State) infringe the provisions of the Treaty conferring jurisdiction to interpret the Treaty to the East African Court of Justice. The Court added that the two amendments were not subjected to prior wide consultations and impinge on its supremacy as the Community’s judicial organ.

Regarding the second matter the Court, appreciating the Respondent’s defence and submissions, decided that since Protocols are under the Treaty, integral parts of the Treaty it has jurisdiction to interpret the Customs Union Protocol and the Common Market Protocol especially in cases where the dispute resolution mechanisms is not satisfactory to any disputants.

The Court observed that the dispute settlement mechanisms are a common feature of regional integration and multi-lateral trading arrangements. The Court therefore ruled the dispute settlement mechanisms provided for in Article 24(1) of the Customs Union Protocol and Article 54 of the Common Market Protocol do not exclude, oust or infringe upon the Court’s interpretative jurisdiction and are not in contravention of or in contradiction of the Treaty.

The Court ordered that given the fact that the subject matter of litigation was of public interest and taking into account the decision it made each party bears its costs.

The Applicant was represented by Dr Francis B. Gimara and Mr Selemani Kinyunyu while the Respondent was represented by Hon. Wilbert Kaahwa, the Counsel to the Community.